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Friday, 12 October 2012

Death and a Good Name: defaming the dead

In the view of Charles Caleb Colton, “The two most precious things this side of the grave are our
reputation and our life.”

But what about the other side of the grave? The press is
currently replete with comment on the recent allegations about the late Jimmy
Savile. There are of course many disturbing facets to both the allegations and
the details emerging about the responses to them when they were originally
made. But the affair also has resonance for lawyers who are interested in what
protection the law does, should and could give to the reputations of the dead
or what rights might be given, and to whom, when the dead are defamed.

"As any good journalist knows, the dead can't sue – that's
why it's now safe for everyone to say they knew Jimmy Savile was up to no good
in the 1970s and he can't touch anyone for writing it. It's also one of the
reasons why now – rather than 40 years ago – the endless revelations about him
are churning out of Britain's media industry quicker than people can turn off
Channel 4's Hotel GB."

In a number of ways, though, the legal position is not as
clear-cut as you might think.

In the first place, of course, the dead can sue. Or at
least, their representatives who are tasked with administering their estate (in
Scotland, their executors) can sue. Not only can they sue but they have a duty
to sue if that is what it takes to ingather the assets which comprise the estate. If you are due
money to someone the debt is not written off just because they die.

(1) Subject to the provisions of this section, on the death
of any person after the commencement of this Act all causes of action
subsisting against or vested in him shall survive against, or, as the case may
be, for the benefit of, his estate. Provided that this subsection shall not
apply to causes of action for defamation."

So, in England, “the death of a claimant even a day before a
libel action goes to court brings the action to a halt.” That is not the
position in Scotland to which the 1934 Act does not extend.
If a person has suffered patrimonial (financial) loss as a result of defamation
of character then the claim for reparation for that is an asset belonging to
his estate which his executors can, and perhaps must, realise by raising or
continuing with appropriate court action. (And as an aside, the same is the
true in England as regards any action based on malicious falsehood). Similarly,
the liability of a defamer does not die with him: his estate remains liable to
a claim by a living pursuer.

Of course, though, none of this is really what is meant when
people talk about defaming the dead. What is being talked about is the
defamation of those who have died, post-mortem. And here, it is true, the law
in Scotland is quite clear:

“When a person dies, the protection offered by the law on
defamation dies too…Essentially, the law on defamation proceeds on the basis
that when people die, they are beyond harm and beyond help. A deceased
person’s own feelings cannot be hurt by subsequent false allegations about
failings in his or hercharacter; his
or her own earning potential cannot be compromised by subsequent false allegations about incompetence etc.

…

It is a long-understood principle of the common law that a
deceased person cannot be defamed, because reputation is personal. A
defamatory statement about a deceased person therefore does not give rise to a
civil action for defamation on behalf of his or her estate.”

The decision in Broom v Ritchie (1904) 6 F 942 suggested
that Scots law might recognise a claim by living relatives for upset caused to
them by defamation of the deceased. Lord Young said:

“I am of opinion that the widow and the children of a dead
man whose character has been defamed are not only interested to clear the character, but it is their duty to take such measures as are
necessary to clear the character and to seek solatium for the injury done to their
own feelings.”

This is an isolated case, though, and does not appear to
represent the current law. The only circumstance in which posthumous defamation
might allow a legal claim to be made by the living is where the words used
involve an imputation against their characters too.For example, Michael Parkinson received an extra-judicial settlement of £25,000 from the Daily Mail which had claimed that he had lied when he said
that his father was honest.
The broadcast and print media also do have obligations to be fair and respect
privacy in terms Codes of Practice supervised by Ofcom and the Press Complaints
Commission so the living may have some remedies. It’s just that the law of
defamation doesn’t provide them. Brutally put:

“defamation law is about protecting reputation, and the dead
have none.”

Now, some view this as quite wrong. 35 years ago, the Faulks
Committee recommended changing the law to allow near relatives a right of
action for posthumous defamation. This was recommended only for England and
Wales (it being felt that the scarcity of defamation actions in Scotland meant
there was nothing to be gained by making the change there) but there was no
enacting legislation: in 1991 the Supreme Court Procedure Committee chaired by
Lord Justice Neill concluded that the balance of argument was against
introducing such a right in England and Wales.

11. (1) Where defamatory matter concerning an individual is
published within the period of 3 years immediately after the death of the
individual, the personal representative of the deceased or the surviving
spouse, parent, child, brother or sister of the deceased has a right of action
against each publisher of the defamatory matter.

(2) Damages shall not be awarded in an action instituted
pursuant to subsection (1).

(3) Where more than one person institutes a defamation
action pursuant to sub-section (1) in respect of the publication of the same
defamatory matter, the Court shall make such order for transfer, removal, stay
or consolidation as is necessary to avoid multiplicity of actions.

(4) Where a defamation action instituted under sub-section
(1) in respect of the publication of defamatory matter has been determined by a
Court, no further action shall be instituted in respect of the same matter
except with leave of the Court in which it is proposed to institute the
action."

3 (1) In this section, "interested person" means a
person who, in the opinion of the court,

(a) has a sufficient business, family, professional or other
relationship with the deceased person to bring an action in defamation with
respect to the publication of alleged defamatory matter about the deceased
person; and

(b) in bringing the action, is motivated primarily by a
concern about the attack on the reputation of the deceased person.

(2) Where a person publishes matter in relation to a
deceased person that would have constituted defamation if the deceased person
had been alive, an interested person may bring an action for defamation against
the publisher of the alleged defamatory matter for a declaration that the
publisher has published defamatory matter regarding the deceased person and for
an injunction preventing further publication of the defamatory matter.

(3) No action for damages shall be brought under this
section.

(4) No action shall be brought under this section more than
five years after the death of the person who was allegedly defamed.”

More recently, the Scottish Government undertook a review and reassessment.
The catalyst for this was a petition by the parents of Diane Watson. Their
daughter was stabbed to death in school row two decades ago. Their son then
took his own life when he read a claim in a newspaper article that his sister
had been a bully. The Watsons' principalconcern had been to prevent killers profiting by selling their stories
to the papers but the Petitions Committee was told by Victim Support Scotland
that bereaved families should have a legal remedy to challenge inaccurate and
defamatory reporting.

The Government’s resulting consultation paper set out the
legal and policy background:

“Freedom of expression is a fundamental and
essential human right… The established law on defamation is a reflection of the
appreciation of the validity of such countervailing rights, specifically as
regards individual reputations... [Defamation] is essentially the legal term in Scotland for
what is known elsewhere as libel and slander. Scots civil law on defamation has
developed through the common law over hundreds of years, periodically being
supplemented by statute, for example by the Defamation Acts of 1952 and 1996.
.. Broadly, the delict ( i.e. wrongdoing) of defamation occurs when a person
makes a communication which contains a damaging and untrue imputation against
the reputation of another person.”

A defamatory statement, so defined, is
rebuttably presumed to be false. Further:

“In order to ensure that it does not limit freedom of
expression more than is absolutely essential for the proper protection of
countervailing rights, the law on defamation is itself subject to a number of
limitations. A long-understood limitation is that it applies only to the
living.When a person dies, the
protection offered by the law on defamation dies too... Essentially, the law on
defamation proceeds on the basis that when people die, they are beyond harm and
beyond help. A deceased person's own feelings cannot be hurt by subsequent
false allegations about failings in his or her character; his or her own
earning potential cannot be compromised by subsequent false allegations about
incompetence etc.

…

It is a long-understood principle of the common law that a
deceased person cannot be defamed, because reputation is personal. A defamatory
statement about a deceased person therefore does not give rise to a civil
action for defamation on behalf of his or her estate. Relatives and associates
of the deceased also have no right of action, unless the words used reflect on
their own reputations. This reflects the central principle in civil proceedings
generally that a claim for damages can only be brought by the person who has
suffered the injury, loss or (as in this case) harm to his or her reputation as
a result of the act or omission of another person”

And finally:

“Against this general background, this paper focuses on one
issue, discussing possible legislative and non-legislative approaches to the
provision of a remedy for the families of the deceased, where defamatory
comments are made posthumously about the deceased”.

The Government clearly had sympathy with the appalling
experiences of families like the Watsons but the specific propositions on which
it sought responses were informed by an appreciation of the tensions and
competing interests and considerations touched on in the introduction. It
referred to the comments of the Australian Attorney General to the effect that:

“three main arguments have been advanced against proposals
to introduce an action for defamation of the dead: first, defamation law is
about protecting reputation, and the dead have none; secondly, the death of the
person defamed makes it impossible for defendants to establish truth through
cross-examination; and thirdly, a new cause of action would inhibit
contemporary historical writing.”

It felt that:

“These arguments need to be considered in Scotland too.
Additionally, there may be other objections which should be taken into
consideration. Significant amongst these would be concern about any potentially
detrimental impact on journalism, the media and publishing industries, through
the creation of the possibility of additional litigation and associated costs.
It may also mean that greater caution might be exercised by these industries in
handling potentially defamatory material, and this could have an impact on
commercial decisions.

…

Conceivably, it may also have a detrimental impact in other
areas. For instance, it may be possible to envisage circumstances in which a
police investigation into a suspicious death could be hindered, because fear of
being sued might cause the media to elect not to publish the sort of
speculative articles that could stimulate useful information and leads for the
police.”

And we then got a clue to the approach that would be
suggested as a possible way toresolve,
or at least accommodate, the tensions when it was observed that:

“the provision of a right to take civil action would appear
to have relatively limited implications for freedom of expression, if that
right were tightly constrained by being available only in quite limited
circumstances involving defamatory material.”

“If the law were to be extended, would it be preferable and
practical to limit that extension only to defamation of people who had died in
defined circumstances ( e.g. any or all of the following: the victims of
murder; of culpable homicide; of dangerous driving; of warfare; of suicide)?

…

If the law were to be extended, would it be preferable and
practical to limit that extension only to allow actions against alleged
defamers who had actually been convicted of causing the deceased's death?

…

Do you consider that the categories of relevant party
entitled to bring an action for defamation should reflect the "immediate
family" as listed at paragraph 20 above? If not, what categories of
relative or other person should be able to bring an action?”

It also considered the possibility of non-legislative
remedies, by reference to the Ofcom Code and the Press Complaints Commission.

Responses
were invited from a number of individuals and organisations, including the BBC,
Sky, ITV, the Association of Chief Police Officers, a number of universities
and academics, the Newspaper Publishers Association, the Samaritans, the
Scottish Law Commission, Victim Support Scotland and others. In the event, the
respondents included the BBC, the Press Association, the Guardian, the Law
Society and a number of individuals and academics. They were, as the Government
observed, in disagreement as to whether or not there was a fundamental gap in
the law that needed filling. The Government’s Summary of Responses
noted that, despite
being asked to do so, few of the respondents had produced evidence to support
their arguments. Perhaps predictably, “Responses received from individuals and victims' organisations indicated that the law was deficient and required to be addressed” whilst “other responses indicated that there was no deficiency in the current system that required to be addressed.” Those opposing any change highlighted that the law of defamation was there to protect reputation and the extension proposed would be an unjustifiable restriction on free speech and historical research and analysis. Few on either side seemed to have much appetite for the compromise of limiting the right to the relatives of those who had died in a limited range of circumstances or against those who had actually caused the deceased’s death. Again, perhaps unsurprisingly, individual respondents were sceptical about the power or appetite of the industries regulatory bodies to provide a remedy.

“In essence, responses were split between those from individual members of the public and victims' organisations (which supported a change to the law) and those from academics, lawyers and media organisations (which opposed a change to the law). The proponents and opponents of reform both argued strongly for their respective positions, but there was little by way of firm factual evidence that the current position is either demonstrably ineffective or demonstrably effective. The opponents, however, did raise a number of significant concerns regarding the practicality of a reformed approach. Amongst this group, there were a number who also argued for a wider review of the law on defamation and privacy.

…

At this point, our view is that it is right to support the objective of ensuring that the reputation of a recently deceased person cannot be defamed with impunity, but that an extension of the law may not be the most appropriate way of delivering the requisite protection.”

But, she made it clear that this was not an end to the matter:

“This is something of a provisional position, however, because it is relevant in considering this issue that, since the consultation was undertaken, the context has changed significantly. I refer, of course, to the revelations and allegations over the summer about phone hacking. The result of these developments is that media standards and regulation are now firmly in the spotlight and a range of inquiries have been established. Amongst these is the inquiry under Lord Justice Leveson, which was set up by the UK Government and covers amongst other matters "the culture, practices, and ethics of the press". We will want to consider carefully the outcome of that inquiry (in which, I understand, the petitioners have been designated 'core participants') and, indeed, the work being undertaken by the UK Government in order to inform our final conclusions as whether the regulatory regimes relating to the media are, or can be made, robust and reliable.”

And indeed, three weeks after that letter, and the day after Bob and Sally Dowler so memorably appeared, James and Margaret Watson gave evidence to the Leveson Inquiry into the Culture, Practice and Ethics of the Press. The statements and transcripts give full detail of the trauma suffered by the family. But further, Mrs. Watson was so moved by the false suggestion by other core participants that people such as her could always “go to law” that she submitted a supplementary witness statement. She said:

“While I am not asking Lord Justice Leveson’s Legal Team to highlight the lack of human rights families of homicide victims are forced to endure under the current defamation legislation, I feel that those who have stated "that you can always go to law if you are not satisfied with an adjudication of the PCC" be reminded that law of defamation does not apply when the victim of defamation is deceased.”

There is an idea out there that some of the reaction to the revelations about Jimmy Savile amount to revenge being extracted from the BBC for its part in Leveson. Whatever, Mrs. Watson was of course right that Leveson will not directly have any effect on how Scots law deals with defamation of the dead but the UK Government wanted the Inquiry to produce its report within 12 months and Lord Leveson said, at the conclusion of the evidence gathering in July this year, that he will “produce a report as soon as I reasonably can”. Anyone with any interest in how the law might be reformed to give some kind of help to people like the Watsons will look forward to that.